DEVELOPMENTS ON LEGALIZATION, INFOPASS, VISA REVALIDATIONS, I-130
PETITIONS AND H-1B GAP CASES
By Alan Lee, Esq.†‡
Part 2 of this two-part article discusses
U.S.C.I.S.'s 7/16/04 notice to adjudicate I-130 relative petitions
when the priority dates become available and its 7/23/04 notice
that it will allow F-1 and J-1 students whose statuses expire prior
to October 1st but whose H-1B petitions have been received by the
U.S.C.I.S. by 7/30/04 to remain legally in the U.S. during the gap
of time in which their statuses expire and the time that new H-1B
cap numbers become available in October.
4. U.S.C.I.S. has just announced by public notice on July 15th
that it will process I-130 petitions for alien relatives as visa
numbers become available. Very few details were given in the notice.
We are ambivalent about the merits of this proposal for the following
reasons: 1) In many ways, this notice merely puts into effect what
has generally been the practice of the U.S.C.I.S. today. Immediate
relative cases (spouses, parents and children under the age of 21
and unmarried of U.S. citizens) which do not require a priority
date to be cleared are processed faster than other classes of cases.
For example, as of July 21, 2004, immediate relative cases in the
Vermont Service Center which were filed as of April 22, 2004, are
being adjudicated; Nebraska Service Center October 4, 2002; Texas
Service Center April 18, 2003, and California Service Center November
1, 2003. Other classes of family based cases which have a backlog
in priority date to be cleared prior to visa issuance are being
processed in the Vermont Service Center between January 19-August
2, 1999, Nebraska Service Center April 13-June 22, 2001, Texas Service
Center January 4, 1999-May 7, 2001, and California Service Center
April 6, 1998-July 19, 2001. So it is difficult to see what the
new prioritization will accomplish unless U.S.C.I.S. intends not
to tackle a category like F-4 siblings of U.S. citizens which currently
has a backlog of 12 years until that priority date is close. Unless
this is a short-lived program, such a move will antagonize petitioners
who will not understand why a preliminary petition must take over
10 years to adjudicate. The bright side of such a long adjudication
process is that it may help to preserve benefits for children under
the Child Status Protection Act (CSPA ) who might otherwise ageout
during the many years of waiting. That is because the time required
for adjudication of an I-130 petition is deducted from the overall
age of the child when considering whether the child is eligible
to be considered as a minor for immigrant visa purposes. 2) The
U.S.C.I.S. will have to ensure that adjudications are done not at
the time that the priority dates become available, but months beforehand,
especially for the beneficiaries who will be consular processed.
The July 15th notice only states that "U.S.C.I.S. will adjudicate
your Form I-130 prior to visa availability (or within six months
if a visa is immediately available upon filing)", but does
not say how far in advance. This is very important because of the
large difference in processing methods between the U.S.C.I.S. for
adjustment of status and U.S. consular posts for immigrant visa
interviews. For aliens applying in the States, I-485 applications
for adjustment of status applications cannot be submitted to the
U.S.C.I.S. until priority dates are current; aliens applying overseas
for consular appointments begin preliminary processing months before
the priority dates become current so that they can be interviewed
in the month that the priority dates clear. The latter group would
obviously be most prejudiced by U.S.C.I.S. adjudicating their I-130s
close to or at the time that the priority dates become current.
3) The U.S.C.I.S. in implementing this procedure would have to become
more uniform and strictly adhere to a policy of swiftly upgrading
or otherwise changing preference categories when permanent resident
petitioners become U.S. citizens. In most cases, the changing of
preference category through the petitioner's naturalization will
speed up the beneficiaries' cases as the priority date of the new
category will usually be faster than that of the old. At this time,
U.S.C.I.S. headquarters does not have a uniform procedure under
which petitioners can rapidly have their I-130 petitions changed
in category and it has been left up to the service centers to handle
the changes in the way that they best see fit. As far as can be
seen , the California Service Center has developed the best solution
through implementing a fax notification system through which individuals
can quickly have such preference categories changed.
5. The U.S.C.I.S. finally published its long awaited H-1B gap notice
on July 23rd in an unfortunately ludicrous procedure. Gap cases
are those in which organizations file H-1Bs ( petitions for specialized
workers holding four year degrees or their equivalent for positions
requiring such knowledge) to begin in the next fiscal year (beginning
October 1st) because the H-1B quota has been exhausted for the present
year in situations where F-1 or J-1 students' statuses will expire
before October. In its notice, the U.S.C.I.S. is only giving organizations
one week until July 30th to have their gap cases received by the
agency. The deadline is comical because it places intense pressure
upon organizations, attorneys and individuals to coordinate and
send all the paperwork within a very short period of time so that
U.S.C.I.S. can receive the paperwork by next Friday. To comply with
this timeline, organizations which are willing to wait until October
1st for the aliens' services after their present statuses expire
might be reduced to filing barebones petitions or electronically
filing the cases. There seems to be very little point for such an
arbitrary deadline as it does not serve any purposes other than
to reduce criticism of the agency and the number of applications
that the U.S.C.I.S. will be receiving from gap cases. The notice
further says nothing concerning gap cases which have already been
denied for change of status in the States.
These are some of the more interesting recent developments in immigration
law and procedure although there are undoubtedly others which are
of equal or surpassing importance.
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